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It was a state law. The USSC case was Texas v. Johnson. Burning a flag is, by the Supreme Court's lights, a form of symbolic speech (whatever that is).
Myself, I don't understand what is being said when a flag is burned. Is it being said that you don't like flags? Or that you don't like the US government? Or is it the people you don't like? Or a specific policy of the US? When someone makes a speech and says "I don't like a specific US policy", I understand them to mean they don't like a specific US policy. I'm not at a loss. When someone makes a speech and says something incomprehensible, I don't understand what they are saying, and I know I don't understand. With a burning flag I don't know if the intended message is incomprehensible, or something else.
There seem to be certain characteristics of burning a flag that are lacking, apart from the fact that it isn't speech, that mark it off from speech. Those characteristics are those of a shared language -- I'm not familiar with the grammar, syntax, and lexicon of the language of flag burning that allows me to determine the meaning of the message, or the fact that it has no meaning. Where can I find a book on the language on flag-burning? My Barnes & Noble doesn't seem to have one.
Ralph E. Luker -
7/9/2004
Was it state or federal law that the Supreme Court struck down? The Court is not the only branch of the federal government which has had a fairly expansive view of its authority.
Richard Henry Morgan -
7/9/2004
I think you've hit on the problem. Burning a flag isn't speech, yet doesn't seem to fall within the scope of delegated powers to prohibit -- yet can be jury-rigged to do so. We've addressed the latter problem by recasting burning of the flag as speech, rather than enforcing the limits on government. There is no federal "disturbing the peace" charge. Whether a state has that power, or chooses to abuse a delegated power in order to prohibit it, is another question. Is flag burning such an inherently valuable activity that one should countenance the Federal Courts reinterpreting perfectly understood terms (like 'speech')in order to bring it under federal protection? I don't think so. Then again, I believe in federalism, a concept abandoned at will by the US Supreme Court.
Ralph E. Luker -
7/9/2004
Don't be coy, Richard. You know as well as I that charges can be trumped up even if they have little justification. Some disturbance of the peace order or some such. If smoking in public places is now a misdemeanor, I should think somebody would want to make smoking a flag another one. Burning fallen leaves is a misdemeanor in some places.
Richard Henry Morgan -
7/9/2004
What would be the basis for a misdemeanor charge absent the conditions you specify? What delegated power would the government claim as a basis for any legal action against flag burning per se?
Derek Charles Catsam -
7/9/2004
Me too. Bigots can burn flags as well as anti-Americans. We can hate them both. Let's just ignore them if we can, endure them if we must, marginalize them as we can, make them outcasts as our goal.
dc
Ralph E. Luker -
7/9/2004
If he owns the flag and burning it doesn't threaten to incinerate other people or property, I'd be opposed even to a misdemeanor charge.
Jonathan Dresner -
7/9/2004
ummm... Assume that he paid good money for a gay pride flag to burn. Otherwise, the waters get TOO muddy, I think.
Ralph E. Luker -
7/9/2004
Is the flag his property or has he burned a flag which is someone else's property?
Jonathan Dresner -
7/9/2004
Ralph,
Derek has pretty much captured what I meant here.
I'd like to pose a hypothetical to muddy the waters: what if, instead of spreading manure, the gentleman in question had burned a gay pride flag near the parade route?
Richard Henry Morgan -
7/8/2004
I almost always agree with Volokh, but here I have to draw some distinctions. He offers that speech goes beyond "oral speech" and can involve expression in another symbolic language. I submit that the prefatory 'oral' doesn't delimit a subset of speech, it just reiterates (quite redundantly, in fact) a property of speech, sort of like saying a hard diamond, to distinguish it from other diamonds (all of which are hard also). We know what speech is, and flag-waving ain't it (nor is flag-burning).
But that's not my main problem. He argues from the fact that one would not want "the government" empowered to ban handwritten letters, to the idea that speech is broader than "oral speech" -- we must read it broadly in order to save other forms of communication, which we will now call speech also. Mention of "the government" is vague. The Federal government (it is often forgotten) and often state governments are governments of limited powers. Absent an explicit power granted them to ban handwritten letters, where is their warrant for doing so?
This points to the evolution of the problem. As judges extended, by interpretation, the power of government (consider the commerce clause) into areas not granted them by the constitution, judges have stepped in to extend, by reinterpretation, the limits of personal rights (Brennan quite consciously adopted this stance of countervailing individual rights). That ground, in between, covered neither by government power, nor by individual right, has nearly disappeared. And now we have the mess where camping out in a shanty on state property is protected speech -- all you have to do is put up a sign "Down With _____", and fill in the blank with the latest political fashion.
Derek Charles Catsam -
7/8/2004
As historians, why can't we also use historical knowledge here? KKK Cross Burnings were a sign of intimidation, of menacing of threat. Cross burnings presage violence. This is not philosophical meandering, this is a fact on the ground. This is not theory, it is reality. The Klan stood for intimidation and physical violence and burning a cross was the largest symbol of that. Why are we burying this by comparing it to manure spreading or flag burning? Why are we minimizing bterrorism for our facile analogies -- by the way, I've no idea who initially raised the analogy, I'm just pointing out that this comparison does not work if we take actual history and not legal theory into account.
The manure being spread across the path of a gay pride parade indicates to me that for that parade to go on, people would have had to have waded through shit. Not the metaphorical kind that we wade through on the HNN comment boards, but rather the real kind that we used to fertilize the fields when I was a kid. Unless someone was being forced to walk through the burning flag, I think the difference ought to be obvious. I know, I know, people had the right to choose whether or not to march in the parade. But that is not what free speech is predicated upon, and in any case, I suppose veterans would have the choice to march or not to march through fiery flags in the street on their parade route. Were that the case, the flag burning is not speech, but rather an action that actually does harm. But if someone is burning a flag that is not going to cause some immediate harm, it is rather different from spreading cow poo across a street that a group is going to use for a parade route. Now really, is the difference that tough to grasp?
By the way, I'm not a big fan of flag burning, and I'd be as likely to pop someone in the nose as worry about the cops stopping it if I saw it happening. But why are conservatives in such a haste to run to the Constitution to ban stuff they don't like?
Carl Patrick Burkart -
7/8/2004
But certainly the local government can ban an action like burning the flag by passing ordinances like "you can't burn stuff in a public park or street." This presumably, would apply to a flag, a cross, or a rectangular piece of cloth with no particular symbolism. Now of course you don't get the satisfaction of singling out Anti-American types or hitting people with fines out of proportion to the damage that igniting a small bit of textile actually does, but that seems a small price to pay. It seems that since Scalia agreed to this, it is perfectly compatible with a strict constructionist view of the constitution. I really don't see any other purpose to an anti-flag burning law that to penalize people who express certain views.
Spreading manure could also be banned based on sanitary grounds regardless of the intent behind it. (By the way, I agree with Volokh that most hate crimes statutes are a bad idea).
Richard Henry Morgan -
7/8/2004
In my second paragraph above I should have said 'cross' where I wrote 'flag'.
One could well argue, contra what I wrote above, that the Founders and the ratifiers didn't know what speech was, or couldn't be trusted to know what it was, or the courts could not be so trusted -- thus, the First Amendment. I suspect they knew, but I'm glad we have the First Amendment anyways.
Which should, of course, be instructive. We didn't have an explicit protection for speech until the Constitution was AMENDED. So much for the contention that one must vest in the Supreme Court an unconstitutional constructive power that goes beyond the limits of the text (in those cases where those limits are quite explicit). I'm not confused about the distinction between burning a cross, burning a flag, and speech. T At least two of them can be used to communicate threats, and only one is speech. This isn't rocket science.
I think your points are perfectly valid, Chris.
Now of course there may be instances of verbal and non-verbal communication that blur the lines between hate and threat, or which partake of both. That's where judgment in individual cases comes in. I don't see that as a warrant for extending to non-speech the protections that the Constitution explicitly limits to speech -- hell, it's hard enough already to distinguish between hate speech and threats, why muddy the waters by extending speech protection to even more vague and ambiguous forms of communication than speech, where the lines are even fuzzier? I just don't get it, and I certainly don't see the Constitutional basis for it. ]
Let's take it out of the realm of thoughts and intentions. What does the damn text say? And is speech distinguishable qua speech from other forms of communication? The text says 'speech', and yes it is distinguishable. End of story. Or at least it should be the end of the story ...
chris l pettit -
7/8/2004
Dangerous path you are treading Richard...
Although I agree that Supreme COurt jurisprudence on the topic is far from encouraging. I think that the problem is that we start to get into intentions and thoughts...things that are hard to prove and are oftentimes dependant on the perceptions of the person seeing the flag or cross being burnt as well as those intentions of the person doing the burning. As always, the bright line cases are the easiest, while the artistic cases or instances with murky circumstances become difficult and cause the most problems. Of course this is why there is no way one can actually have a bright line rule and apply it evenly in every case...thus is the nature of jurisprudence. Those who advocate for a bright line application usually do so for their own selfish purposes without thinking as the community as a whole. Strict constructionalism and trying to get inside the minds of the Founders is then silly.
So here is the question...how do we determine the intentions of the actors and what qualifies as "fighting words" or hate speech that is forbidden by the Constitution and those reactions that could verge on one of my favorite tort defenses from law school...that of the "oversensitivety of the plaintiff?" Can we do such a thing without bringing in the prejudices of those making the decisions? Do we go with a democratic community standard? The broadest reading possible (my personal choice)? I just don't think a bright line standard is ever really successful and creates more problems than it solves.
So how do we deal with the crazies on both sides...those who are immoral enough to use hate speech and prey on the misery of others through threats and degradation...and those who are so hypersensitive and overly politically correct that the slightest thing, no matter what the intentions behind it, sets them off?
Actually, the Supreme Court has never banned cross-burning per se. It specifically ruled against a Minneapolis hate-speech ordinance crafted by the confused mind of Catherine MacKinnon and applied to a cross-burning case (the RAV case). MacKinnon, who can't distinguish between pornography and rape, couldn't distinguish between expressing hate, and issuing a threat.
In the Virginia case the Supreme Court restricted the ban to those instances where it is used to communicate a threat (as issuing threats is itself illegal). So, for instance, the burning of a flag in a film, or as part of a stage production, or in other circumstances, could well pass Constitutional muster -- imagine a film about the KKK without a cross-burning.
I love that sentence, Ralph: "burning flags and spreading manure are not comparable acts of speech"
They seem perfectly comparable to me in this sense: neither one is an example of speech, except in the dark corners of Supreme Court jurisprudence. I submit the Founders knew what speech was; the ratifiers knew what speech was; in fact everyone knows what speech is except, of course, the Supreme Court. We wouldn't be drawing these lines between manure and flags if the Supreme Court had contented itself with the lines already drawn by the Constitution.
Ralph E. Luker -
7/8/2004
I don't understand why a cross burning is more analogous to manure spreading than a flag burning is. Both involve the desecration of a valued symbol. Unless the analogy you see is that cross burning and manure speading direct a protest or a threat against a minority or minorities. In that case, it seems to me you are close to favoring a ban on hate speech or hate crime. Flag burning, cross burning and manure spreading are all three actions. Is flag burning more like bra burning?
Jonathan Dresner -
7/8/2004
It is tough to distinguish between "speech acts" and "actions" but this doesn't seem to be such a fine-grained case. The analogy to cross-burning, which has consistently been ruled an unprotected "act" rather than "protected speech" would seem to be more apropos than flag-burning rulings.
